October 2022 Visa Bulletin – EB-2 India Major Retrogression; EB-1/EB-2 Visa Numbers Used Up For This Fiscal Year

The U.S. State Department has just released the October 2022 Visa Bulletin which is the first Visa Bulletin for the new fiscal year. The headline in the upcoming month’s Visa Bulletin is the major retrogression in the EB-2 India cutoff dates which means that a large number of pending EB-2 India I-485 applications will be on significant hold until the cutoff dates advance again.   Similarly,  it appears that USCIS/DOS have used up all of the visa numbers (especially for EB-1 and EB-2) for the fiscal year (ending on September 30th) which means that no new I-485 approvals are expected in September.

Which India and China Employment-based Applicants Are Eligible to File I-485 in October?

Stay tuned – USCIS will announce shortly if they are going to be following the Dates for Filing or Final Action dates for I-485 filings during the month of October.

Summary of the October 2022 Visa Bulletin – Employment-Based (EB)

Please note that USCIS will determine and publish, about a week after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.

Summary of the October 2022 Visa Bulletin – Family-Based (FB)

USCIS will determine and publish separately, a few days after this Visa Bulletin is published, whether or not to accept I-485 filings on the basis of these filing dates.

EB-2 India Retrogression – What Happens With EB-2 India Applicants Now?

The Department of State announced a significant retrogression in EB-2 India – from December 2014 to April 2012.     The reason is the fact that EB-2 India was advanced very quickly during the fiscal year in order to maximize the number of utilized visas given the extremely high employment quota of 281,507 visas for the fiscal year.   Heavy EB-2 India applicant demand, together with significantly lower employment visa number quota for the next fiscal year, required the Department of State to move back the EB-2 India cutoff dates.

At this time we do not know when and by how much EB-2 India will advance.   There is still a significant backlog of EB-2 India applicants with dates before April 2012 waiting for consular or I-485 approval so it is possible that the government will continue to use EB-2 India visa numbers early in the next fiscal year; this likely means that it may be several months before we expect more clarity and forward movement in EB-2 India.

Remainder of September 2022 – Last Call for I-485 Filings for EB-2 India Applicants With Priority Dates Later Than April/May 2012

The October 2022 Visa Bulletin becomes effective on October 1.   Until then, for the remainder of September 2022, the September 2022 Visa Bulletin controls and as of the date of this article, USCIS still allows I-485 filings by EB-2 India applicants with a priority date of December 1, 2014 or earlier. As a result, if there are EB-2 India applicants who have not yet filed I-485 but are in position and eligible to do so, to consider filing their I-485 immediately and before the end of September 2022.   Please contact us if our office can help – we have a streamlined quick I-485 process to accommodate late or quick I-485 filings.

Reports of Visa Numbers Being Used Up For the Fiscal Year – No More I-485 Approvals in September?

Our office is aware of numerous (and increasing in frequency and reliability) reports that USCIS has used up all visa numbers for this fiscal year.   For example, in a September 6, 2022 court filing USCIS has indicated that “as of September 6, 2022, there are no visas remaining for applicants from any country of chargeability in EB1 or EB2”.     

While it is possible for additional approvals in cases where the visa number has been already authorized, generally, we should not expect USCIS to continue to approve many I-485 cases for the remainder of September 2022. Despite the EB-1 and EB-2, and likely EB-3, visa numbers being used before the end of September, and even if USCIS/DOS announce that no more visa numbers are available for September, as of now and as noted in the prior section, USCIS continues accepting adjustment of status applications in accordance with the current September 2022 Visa Bulletin. However, USCIS will not be able to approve any cases once visa numbers are no longer available and those cases will remain pending and be retrogressed until visas become available for the applicable priority date.

What Happens to My EB-2 India Interfiled But Still Pending I-485 Application?

Even though USCIS has been able to approve many pending EB-2 I-485 applications, unfortunately, there are likely tens of thousands of EB-2 India I-485 applications which remain pending.   Some of these are direct EB-2 India I-485 applications and some of them are “interfiled” EB-3 to EB-2 India I-485 applications.   Unfortunately, these applicants whose priority date is no longer current as of October 1, 2022 will have to continue to wait until the priority date becomes current again before USCIS can approve their case.

Our office is getting many questions as to whether an EB-2 India interfiling was a mistake given the significant retrogression in EB-2 India.   At this time, we do not know.   Yes, the EB-2 India cutoff dates retrogressed significantly but this was a one-time reaction by USCIS to stop the rate of filings and approvals given the used visa numbers for this fiscal year.    Even though the visa numbers for the next fiscal year are projected to be lower,  we anticipate that USCIS will continue to advance EB-2 India after they get a sense of the remaining EB-2 India applications.    At this time, unfortunately, we cannot reliably predict when and by how much would the EB-2 India cutoff dates advance. Pending I-485 applicants continue to be eligible to apply for advance parole travel permit and EAD work permit, including, in most cases, to port their pending I-485 to another employer to a same or similar job under AC21.

FB-2A Remains Current for All Countries – Opportunity to File I-485 Adjustment of Status

The Family-based Second Preference (FB-2A) category remains “Current” for this month.   This action has been taken in an effort to generate an increased level of “demand” or number of filings.

FB-2A category is for “Spouses and Children (generally under 21 years of age) of Permanent Residents”

This means that FB-2A applicants, especially those who are in the U.S. on valid status, should consider filing for I-485 Adjustment of Status as soon as possible in the event there is a cutoff date introduced in the following month’s Visa Bulletin.   Note that because the cutoff date is “Current”, it is possible to file a brand new FB-2A where the I-130 immigrant petition and the I-485 adjustment of status are filed concurrently.    So this is an opportunity to file I-485 not only for existing but also for new FB-2A cases.

FB-2A applicants who are pursuing the NVC/Consular may still consider completing their applications so that the U.S. Consular sections can complete the interview and the immigrant visa approval process as soon as possible.

Current Date?

Our office stands ready to assist in the applicable process.  There are many applicants across many of the employment and family categories who can now process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications. We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this month’s Visa Bulletin.